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Madhya Pradesh High Court · body

2010 DIGILAW 1049 (MP)

Jiyalal v. State of M. P.

2010-10-13

R.C.MISHRA, VIMLA JAIN

body2010
JUDGMENT 1. This appeal has been preferred against the judgment dated 10-11-1995 passed by Special Judge (under Section 3 of the Prevention of Corruption Act, 1988) (hereinafter referred to as the 'Act'), Balaghat in Special Criminal Case No. 1/92 whereby the Appellant was convicted and Sentence as under with the direction that the jail sentences shall run concurrently- Convicted under Section Sentenced to 7 of the Act Undergo R. I. for 1 year and to pay a fine of Rs. 200/-and in default, to suffer R. I. for 3 months. 13(l)(d)(ii) read with 13(2) of the Actundergo R. I. for 1 year and to pay a fine of Rs. 200/-and in default, to suffer R. I. for 3 months. 2. This appeal was allowed by a single Judge of this Court vide judgment dated 26-6-2006 solely on the ground of invalidity of the sanction. However, in appeal preferred by the State, the Supreme Court, vide order dated 31-7-2009 passed in Criminal Appeal No. 1386/2009 reported as State of M.P. v. Jiyalal AIR 2010 SC 1451 : AIR 2010 SCW 651, set aside the order of acquittal and remanded the matter for being considered on merits. 3. The Appellant, at the relevant point of time, was posted as Patwari of Halka No. 62, falling within the territory of Revenue Circle Lalbarra. The complainant Mangulal (PW-1) is the nephew of Subhan (since dead) who was holding an agricultural land bearing Survey No. 122/1, situated at Village Sursodi. He moved an application for mutation of acquisition of rights regarding the land on the basis of a will executed by Subhan in his favour. It was allowed by Naib Tahsildar, Waraseoni vide order dated 3-7-1989 (copy of which is available on record as Ex. P4-A). However, while making the corresponding entry in the relevant land records, due to inadvertence, the Appellant recorded name of complainant as Manglulal in place of Mangulal. 4. To state briefly, the prosecution case is that on being requested to rectify the clerical error, the Appellant demanded an illegal gratification of Rs. 100/- from the complainant who, in turn, informed the Collector on 1-8-1989 about the misconduct by way of a written complaint (Ex. P-2). Thereupon, the Collector directed M. Xaxa (PW-4), the then Sub-Divisional Officer (Revenue) (for brevity 'SDO(R))', Waraseoni to take necessary action for arranging a trap as prayed for. 100/- from the complainant who, in turn, informed the Collector on 1-8-1989 about the misconduct by way of a written complaint (Ex. P-2). Thereupon, the Collector directed M. Xaxa (PW-4), the then Sub-Divisional Officer (Revenue) (for brevity 'SDO(R))', Waraseoni to take necessary action for arranging a trap as prayed for. On 2-8-1989, in the Rest House of Lalbarra, details of the trap were fixed up by Sub-Divisional Officer (Police) (for short 'SDO(P)') namely K. L. Uike (PW-5) in presence of panch witnesses namely Jugal Kishore (PW-2) and Abdul Samad Khan (PW-3). Mangulal produced two currency notes each of Rs. 50/-denomination for the purpose before the SDO (R) who, after noting down the numbers and making initials on the notes, made over the same to Mangulal for being passed on as bribe to the Appellant. The trap party led by the SDO(R) and comprising SDO(P), the complainant and panch witnesses proceeded in a jeep to Village Deori where the Appellant's residence was located. Leaving the jeep at the outskirts of the village, members of the party went on foot towards his residence. After handing over the marked currency notes to the Appellant, Mangulal made the appointed signal by moving his hand on his head. Immediately thereafter, the Appellant was apprehended by K. L. Uike in front of the house of Bhaiyalal Daharwar and from pocket of his shirt, the marked currency notes bearing Nos. OSM171460 and TQC197074 were recovered. The notes and relevant revenue records were duly seized by K. L. Uike. He, by scribing the FIR (Ex. P-5), registered a case under Section 161 of the IPC read with Section 5(2) of the Prevention of Corruption Act, 1947 presumably in utter ignorance of the fact that the Act of 1947 had already been substituted w.e.f. 9-9-1988 by the Act of 1988. After completing the investigation and obtaining sanction (Ex. P-6) from the Executive Magistrate, charge-sheet was submitted before the Special Court (under the Act) at Balaghat. 5. On being charged with the offences punishable under Sections 7 and 13(1)(d)(ii) read with 13(2) of the Act, the Appellant pleaded false implication. The defence throughout had been that he neither demanded nor received the sum of Rs. 100/- as bribe. In the examination, under Section 313 of the Cr.PC, the Appellant further narrated as to how the notes were planted in the pocket of his shirt. The defence throughout had been that he neither demanded nor received the sum of Rs. 100/- as bribe. In the examination, under Section 313 of the Cr.PC, the Appellant further narrated as to how the notes were planted in the pocket of his shirt. As per his version, at the time when he was preparing record; for being taken to the District headquarters, Balaghat, the complainant came to his house and remained seated in the room wherein his shirt was hanging on a peg. Nearly 1/2 -1 hour thereafter, the SDO(R) & SDO(P) along with other persons arrived there and in presence of co-villagers Teklal and Surajlal, apprised him of the fact that the currency notes were kept in the pocket of his shirt. 6. Legality and propriety of the impugned convictions have been challenged primarily on the following grounds: (i) No independent witness was examined to prove the demand of bribe. (ii) No scientific test was conducted to show that the marked currency notes used for the trap were the same as handed over to the complainant for the purpose. (iii) Material inconsistencies in the statements of the complainant and the members of trap party were sufficient to establish probability of defence. In response, learned Govt. Advocate, while making reference to the incriminating pieces of evidence, has submitted that the convictions in question are fully justified. According to him, the complainant, being illiterate agriculturist from rural area, was not expected to recount all the details of the trap with meticulous exactitude. 7. In the light of the admitted facts enumerated above, the point for consideration in this appeal lies in a narrow compass viz. "whether statutory presumption under Section 20 of the Act was attracted to the facts of the case"? 8. Before adverting to the merits of rival contentions in a proper perspective, it may be seen that, admittedly, the Appellant had not demanded any illegal gratification either for entering the mutation or for supplying copy of the corresponding entry to the complainant Mangulal (PW-1). Against this backdrop, even though, he reiterated the allegations as recorded in the complaint (Ex. P-2) made to trie Collector as well as the assertion that in pursuance of the demand, the Appellant had taken an amount of Rs. 100/-in the form of marked currency notes of the denomination of Rs. Against this backdrop, even though, he reiterated the allegations as recorded in the complaint (Ex. P-2) made to trie Collector as well as the assertion that in pursuance of the demand, the Appellant had taken an amount of Rs. 100/-in the form of marked currency notes of the denomination of Rs. 50/- each for correction of the incorrect entry in the land records yet, his evidence suffered from the following contradictions with reference to the contents of the First Information Report (Ex. P-5) scribed by SDO (P) K. L. Uike (PW-5) immediately after conclusion of trap proceedings and other evidence on record: (i) According to complainant Mangulal (PW-1), he and all other members of the trap party had travelled in the same jeep from Lalbarra to Deori. A similar version was reflected in the FIR (Ex. P-5) and stated on oath by SDO(P) K, L. Uike whereas amongst the panch witnesses, Jugal Kishore (PW-2) was emphatic in deposing that Mangulal had gone to Deori all alone on a bicycle and Abdul Samad (PW-3) gave an altogether different statement to the effect that another jeep was used to carry police party from Lalbarra to Deori despite the fact that Mangulal had not accompanied other members of the trap party who had proceeded together in a jeep from the Rest House to the spot. (ii) Statement of Mangulal that the jeep carrying the trap party was parked outside the village drew ample support from the evidence of M. Xaxa (PW-4), K. L. Uike (PW-5) and Jugal Kishore (PW-2) but Abdul Samad (PW-3) categorically testified that the jeep was stopped just in front of the Appellant's house. (iii) As per the vprsion recorded in the First Information Report, after handing over the amount to the Appellant, the complainant had given agreed signal to the trap party by moving his hand on his head whereas in his sworn testimony, he clearly admitted that he had not made any signal. He further resiled from the corresponding part of police statement (Ex. D-l) suggesting that having witnessed the passing of money, Jugal Kishore had relayed the signal. Jugal Kishore (PW-2) and Abdul Samad (PW-3), the independent members of trap party, did not corroborate corresponding assertions made by M. Xaxa (PW-4) and K. L. Uike (PW-5) that they had rushed to the house only on receiving the agreed signal from Mangulal. D-l) suggesting that having witnessed the passing of money, Jugal Kishore had relayed the signal. Jugal Kishore (PW-2) and Abdul Samad (PW-3), the independent members of trap party, did not corroborate corresponding assertions made by M. Xaxa (PW-4) and K. L. Uike (PW-5) that they had rushed to the house only on receiving the agreed signal from Mangulal. (iv) Mangulal also did not support the fact as mentioned in the FIR and re-affirmed by K. L. Uike that he had given currency notes at the time when the Appellant was coming out of his house. Jugal Kishore (PW-2) claimed to have seen passing of currency notes in front of the house but the evidence of second shadow witness viz. Abdul Samad (PW-3) clearly indicated that the Appellant had received the bribe amount in his house only and thereafter, Mangulal was able to meet the trap party at a distance of 50 yards from the house whereas M. Xaxa asserted that Mangulal had given the pre-arranged signal after coming out of the house. 9. These infirmities assumed significance as no scientific test was applied to prove that' the Appellant handled the currency notes in question. As pointed out by the Apex Court-in Raghbir Singh v. State of Punjab (1976) 1 SCC 145 : AIR 1976 SC 91 . ...where a trap is laid for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling' of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend oh oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant.... 10. There was nothing on record to explain as to why the scientific process was not adopted in the present case even though the' trap party was led by a SDO (R). 11. Adverting to the defence, it may be ' observed that probability thereof gathered, support from the testimony of Abdul Samad; Khan (PW-3). He came forward to depose that currency notes were seized in the house of the Appellant, who was found busy in arranging the scattered records and not in front of the house of Bhaiyalal as reflected by K., L. Uike, the detecting officer, in the seizure memo (Ex. P-l). He came forward to depose that currency notes were seized in the house of the Appellant, who was found busy in arranging the scattered records and not in front of the house of Bhaiyalal as reflected by K., L. Uike, the detecting officer, in the seizure memo (Ex. P-l). As highlighted already, evidence of Abdul Samad Khan was found inconsistent on other material points but he was not declared hostile by the prosecution. In such a situation, the Appellant was entitled to rely upon his sworn testimony to substance-. date the plea of defence. 12. Learned trial Judge also referred to the presumption under Section 20 of the Act. However, it is well settled that the premise to be established for arriving at the presumption is that the public servant had obtained or accepted any illegal gratification. Nevertheless, in the instant case, on one hand, the infirmities in the prosecution evidence were sufficient to cast legitimate doubt on veracity of the story advanced and on the other, the defence that the currency notes were put into pocket of his shirt hanging on a peg without His knowledge while he was busy in arranging the records for being taken to the District Headquarters did not appear to be improbable. The fact that none of the witnesses named in his statement viz. Teklal and Surajlal was produced in defence was of no consequence as the evidence adduced on behalf of the prosecution could be relied by the accused for rebutting the presumption. 13. In the light of these facts and circumstances of the case, the trial Judge erred in law in invoking the presumption under Section 20 of the Act. Thus, the impugned convictions cannot be sustained. 14. There is yet another, aspect of the matter. The sanction to prosecute the appellant (Ex. P-6) not only suffered from several defects, as enumerated by learned single Judge in the judgment dated 26-6-2006, reflecting non-application of mind, but also from lack of authority in view of the fact that the Executive Magistrate, who 'accorded it, was. not competent to remove, the accused from service. Such a defective sanction had certainly resulted into failure of justice (See State of Karnataka v. Ameerjan (2007) 11 SCC 273 : AIR 2008 SC 108 ). 15. For these reasons, the appeal deserves to be allowed. 16. Accordingly, the appeal stands allowed. not competent to remove, the accused from service. Such a defective sanction had certainly resulted into failure of justice (See State of Karnataka v. Ameerjan (2007) 11 SCC 273 : AIR 2008 SC 108 ). 15. For these reasons, the appeal deserves to be allowed. 16. Accordingly, the appeal stands allowed. The impugned convictions and the consequent sentences are here by set aside. Instead, the Appellant is acquitted of the offences. Fine amounts, if deposited, be refunded.